EASTER v. EASTER et al. the firm made some money. In 1894 Charles R. Easter married the defendant Elizabeth (Supreme Court of Missouri, Division No. 2. R. Easter, who appears to have had some Nov. 13, 1912. Rehearing Denied Dec. 10, 1912.) 1. TRUSTS (§ 86*)-RESULTING TRUSTS-BURDEN OF PROOF. One seeking to establish a resulting trust in real estate on the ground that his money went into the purchase thereof, while the legal title was taken in the name of another, has the burden of proving clearly and convincingly the fact. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 128; Dec. Dig. § 86.*] 2. TRUSTS (§ 89*)-RESULTING TRUSTS-EVIDENCE-SUFFICIENCY. Evidence held not to establish a resulting trust in real estate, on the theory that plaintiff's money went into the purchase of the property, legal title to which was taken in the name of defendant. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 134-137; Dec. Dig. § 89.*] Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge. Action by Warren W. Easter against Charles R. Easter and another. From a judgment for plaintiff, defendants appeal. Reversed, with directions to enter judgment for defendants. McCune, Harding, Brown & Murphy, of Kansas City, for appellants. Ed E. Aleshire and S. S. Gundlach, both of Kansas City, for respondent. BLAIR, C. Warren W. Easter, the plaintiff, and defendant Charles R. Easter are brothers, and defendant Elizabeth R. Easter is the latter's wife. For about 10 years the brothers were partners in the restaurant business, and this suit was begun by plaintiff to recover an interest in a certain lot in Kansas City the title to which was taken May 11, 1901, in the name of defendant Elizabeth, but which plaintiff contends was bought, with partnership funds and for the partnership. From a decree vesting title as to an undivided one-fifth of the property in the plaintiff and defendant Charles R., as partners, both defendants have appealed. Counsel do not differ materially as to the law of the case, the real controversy being as to the sufficiency of the evidence to support the findings that partnership funds were employed in the purchase. Since the principal question to be determined is purely one of fact, it becomes necessary to review the evidence in the case. The partnership between the brothers began in 1892, and they conducted the business until some time in 1895, when it was sold on deferred payments which the purchaser soon found himself unable to meet, and the partnership again resumed the business and prosecuted it continuously until in 1902. The evidence does not show the profits of the business to have been very large prior to the sale mentioned, though there is evidence knowledge of the restaurant business and to have been both capable and economical. Some time after resuming business in 1895 the two brothers began to save a little money, and by June, 1899, had accumulated $105 each by means of payments separately made on building and loan stock. In June, 1899, the two purchased the interest of another brother in property at Lexington, paying $50 each and executing a note for $75 for a balance. At this time plaintiff withdrew all his money from the building and loan, and Charles R. borrowed $50 from the association, withdrawing the balance two months later. The business was prosperous thenceforward, and May 11, 1901, the property here involved was purchased; the title being taken in the name of Elizabeth R. Easter, and the purchase price of $7,000 being paid as follows: $500 in cash; $2,000 in property conveyed to Elizabeth R. Easter by her mother for use in effecting the purchase; and the balance was secured by a first and second deed of trust for $3,500 and $1,000, respectively. The owner of the property had no dealings with plaintiff; the whole of the business, including his contract to erect a twostory building on the lot he sold, being transacted by Elizabeth R. and Charles R. Easter. An error in the estimate of the width of the lot resulted in a credit of $300 on the note secured by the second deed of trust, and the balance of $700 was paid, as due, in monthly installments of $75; the greater portion of the amount being paid between May 11, 1901, and May 15, 1902. These payments were made by Mrs. Easter, usually; none of them being made personally by plaintiff. From the beginning plaintiff was addicted to the use of intoxicants, and the evidence is clear that he spent some time and considerable money in indulging his appetite for drink. Apparently disinterested witnesses testified that for a long time he was constantly under the influence of liquor, and he admits the habit, but denies expending any considerable amount of money in indulging it. At any rate, in 1899 his condition had become such that he thought it proper to take what is commonly called the "Keeley Cure," and did so. Thereafter he began drinking again, and his health seems subsequently to have been very poor. In 1902 plaintiff, who is usually called "Wirth" by the witnesses, executed to defendant Charles R. Easter a bill of sale of the stock and fixtures "together with the good will of such restaurant business heretofore conducted at 420 West Ninth street, Kansas City, Mo., under the name of 'Easter Bros.' It being the intention of said Warren W. Easter to convey to said Charles R. Easter all his interest in and to the above described property and business." This in- | Mrs. Drummond and Mrs. Whitsett (sisters strument was dated July 30, 1902, and the of the Easters) testified Mrs. Easter told recited consideration was $500. The consid- them in February, 1903, that if anything haperation was paid, the evidence shows, in | pened to her husband Wirth "would get his semimonthly installments of $15. Plaintiff testified he and his brother had no settlements and made no division of profits at all during the time the partnership existed, but that Charles R. simply kept all the firm's money after the expenses were paid; that until 1899 the profits were small and were absorbed by rent paid which amounted to $70 per month. He was unable to state what profits the firm was making at the time the removal to the new building (1901) occurred, the nearest approach being: "Well, we were doing a very good business, a very good business, and, so far as the volume goes, I do not know; it might have been over $100 a month, probably, clean cash." He further testified the firm had $600 or $700 on hand in May, 1901; that he and Charles R. Easter agreed to purchase the lot at 420 West Ninth street and have the title put in the name of Charles' wife. He testified positively he personally participated in the negotiations for the lot, but it clearly appeared he did not do so. He was unable to tell by or to whom the money was paid, from what source it came or what the amount of it was, and finally admitted he did not know that it was paid at all. He said that both he and his brother had access to the money drawer, that each took money as he wished, leaving a ticket in the money drawer, and that a book account of what each received was kept by the firm. The book was not produced, nor was any effort made to secure its production, so far as the record shows. There is so much of contradiction, uncertainty, and clear mistake in plaintiff's testimony that it may be properly characterized as quite incoherent. Lawrence Easter, another brother, testified that defendant Charles told him at one time in 1895 or 1896 the firm had building and loan stock to the amount of "possibly $400 to $600, something like that, $500, I don't remember the amount," accumulated in "a few years, a year and half," and that after 1902 plaintiff wanted to go back to the restaurant, but Charles R. would not permit it, stating that, Wirth "was breaking down in health and had plenty and didn't have to work." Witness declared he frequently asked Charles R. to take Wirth back with him. He further stated that in 1901 he had heard Charles R. say the firm was making $300 to $400 per month, but acknowledged Charles R. offered to sell the business to him for $700. James Drummond testified that in 1906 Charles R. Easter said to him that: "Weezie and Jessie was continually after him to let Wirth go back in the business. Now Wirth don't have to work. He has plenty to take care of him, and I intend to part just the same." Walter Whitsett, a brother-in-law, testified that Charles R. Easter, speaking of the proposed purchase of the lot in question, told him he and Wirth were talking about buying it, but he (Easter) "had a hard time to get Wirth's consent to it; he was scared to risk his money in it, and thought they might lose everything they had, and he discouraged him every time he approached him about, the matter"; that Charles R. also told him "they had talked it over and concluded to have the deed put in his wife's name for their own convenience. Witness also said Charles R. had told him he and Wirth were to put $2,600 to $3,000 into the purchase of the lot at the first. There was also evidence from these and other witnesses as to other alleged admissions, but they were inferences of the witnesses, as appeared in each instance, and lacking in probative force. Charles R. Easter and his wife both testified that the $500 cash payment made on the lot was composed of $250 of Mrs. Easter's money, paid her by her mother for the board of Cora La Rose, Mrs. Easter's younger sister, and $250 which belonged to Charles R. Easter personally. They denied the admissions attributed to them, and detailed the manner in which they purchased the lot in question, and in respect to this were corroborated in the main by the former owner. The subsequent payments were made, they said, from the rent from the building, about $125 per month, and Charles R.'s share of the profits from the restaurant business. As to Wirth Easter's dissolute habits they were corroborated by Cora La Rose, by a bartender, and another disinterested witness. They offered in evidence the cashbook of a building and loan association showing that Wirth and Charles R. Easter had $105 each with the association in 1899 and that the money was withdrawn by each of them in the summer of that year. They produced a list of payments made to Wirth Easter, subsequent to the date of the bill of sale in evidence, totaling seven hundred and some dollars. It appeared from their evidence and that of plaintiff that the firm of Easter Bros. paid no rent to Elizabeth or Charles R. Easter. Defendants testified this was the result of a promise to plaintiff that they would buy the lot and put up the building and charge the firm no rent if he (plaintiff) "would brace up and quit drinking" and attend better to business. The rental value of the room occupied by the restaurant was about $25 per month. According to the evidence for defendants, no books, as between the partners, were kept; the profits being divided when there were any. For some time after the dissolu ment of the $500 due plaintiff according to [eration of her caring for her sister, Cora the terms of the bill of sale, Charles R. Eas- La Rose. This leaves but $260 in which ter continued to furnish some money to plain- plaintiff could have an interest. Clearly, tiff directly or pay it to his brothers or sis- then, the plan under consideration at the ters for caring for him, but in 1905 refused time Charles R. Easter talked with Whitto provide for him further. Two of the sis- sett, taking Whitsett's testimony as true, was ters, according to their testimony, attempted not the one adopted in the purchase. to get him to take plaintiff back, but he refused. It appears Charles R. also contributed to the support of another brother. [1] The question in this case is whether the cash payment of $500 made on the lot purchased in 1901 was partnership money. In order to establish a resulting trust in this case it must be shown that partnership money went into the purchase of the lot. On plaintiff rests the burden to make this appear so clearly, cogently, and convincingly as to leave no reasonable doubt on that head. Counsel do not differ as to this. Further, plaintiff's unexplained conduct in signing the bill of sale (and we agree with the trial court he did execute it) without giving any attention to the interest he now claims in the realty, and the fact he seems never to have concerned himself about it until the property had greatly increased in value, are not in full accord with his position in this case. He apparently took no part at any time in the management of the property or the collection of the rents-gave it no attention whatever, so far as this record shows. Plaintiff's own testimony is val[2] Has plaintiff met the requirements of ueless. It may be possible his incoherency, the rule? We think not. That the partner- lack of memory, and self-contradiction are ship had funds at the time is not sufficient. due to the effects of his unfortunate habits; They must be shown to have gone into the but, whatever their cause, they cannot themproperty. To meet the denial of defendants selves constitute evidence in his favor. The and the fact that plaintiff personally took no record does not indicate any willful mispart of any kind in the negotiations and had statement of facts by any witness, but rather no interest in the property turned in on the that those for plaintiff have mingled inferencpurchase of the lot, resort is had to testi-es with unguarded and ambiguous statements mony as to statements made by Charles R. of defendants and have permitted themselves Easter in contemplation of the purchase and admissions said to have been made by him and Elizabeth R. subsequent thereto. As to the former they clearly appeared, in several instances, to have been unconsciously amplified by inferences drawn by the witnesses from the mere fact that a partnership in the restaurant business existed between the brothers. In other instances the alleged declarations might as clearly indicate an intent of Charles R. Easter and his wife to purchase as an intent of the partners to do so. to assume from the partnership in the restaurant business a partnership in everything. In view of these facts and the rule to which we have already adverted, this judgment ought to be and is reversed, and the cause remanded, with direction to the trial court to enter judgment for defendants. ROY, C., concurs. PER CURIAM. The foregoing opinion of BLAIR, C., is adopted as the opinion of the court. All the Judges concur. CO. Nov. 13, 1912.) 1. EASEMENTS (§ 3*)-PRIVATE WAY. Where there was a partition creating an easement in an alley in favor of all the parcels conveyed, such easement became incident and appurtenant to such parcels, and passed as appurtenant thereto in subsequent conveyances by or without the word "appurtenances,' so long as such estates existed as distinct estates, unless it was abandoned or extinguished in some way. So far as the admissions coming after the purchase are concerned, what has just been said applies to some of them, and others have no direct reference to the property in question. Mrs. Elizabeth Easter's statement in DULCE REALTY CO. v. STAED REALTY February, 1903, is explicable as a reference to the unpaid balance due plaintiff under (Supreme Court of Missouri, Division No. 2. the bill of sale. Mr. Whitsett's testimony shows that plaintiff was objecting to the purchase, was afraid to participate in it, and was opposing it. It also appears from his testimony that the plan at that time, the one plaintiff was considering, was that Easter Bros. were to put $2,600 to $3,000 into the property in order to get the lot and get a building erected thereon. The actual purchase made was not in accordance with this [Ed. Note. For other cases, see Easements, plan. It is beyond dispute that $2,000 of the Cent. Dig. §§ 8-12; Dec. Dig. § 3.*] $2,500 payment made at the time of purchas- 2. BOUNDARIES (§ 21*)-OWNERSHIP OF FEE. ing the lot consisted of property belonging to ment in a private alley to the different parcels Where deeds in partition reserving an easeElizabeth Easter's mother in which plaintiff did not expressly convey the fee of the alley had no sort of interest, and we think it satis- to any one, it is presumed that, as in case of a factorily proved that $240 of the remaining hold the fee to the center, so that an abutting public way, the owners of the abutting property $500 was money of Mrs. Easter derived from owner had no title in the opposite half thereof, payments made her by her mother in consid-unless it was established by the statute of limi tations as the mere destruction or abandonment | east line of it being the west line of the alof the easement would not give such a title. ley. The other tract acquired by defendant [Ed. Note. For other cases, see Boundaries, in 1894 fronts 26 feet 2 inches on Ninth Cent. Dig. § 131; Dec. Dig. § 21.*] An easement acquired by a deed cannot be lost by mere nonuser. [Ed. Note. For other cases, see Easements, Cent. Dig. 88 77-79; Dec. Dig. § 30.*] 4. ADVERSE POSSESSION (8 80*) EXTENT COLOR OF TITLE. A quitclaim deed from the owners of land abutting on a private alley and purporting to convey such alley is not sufficient as color of title, where it described the strip as "known as a private alley," as it is a confirmation of the alley rather than an impeachment. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 463-467; Dec. Dig. § 80.*] 5. EASEMENTS (8 9*)-HOSTILE CHARACTERSUFFICIENCY. Where the beginning of the possession of a private alley by an owner of property abutting one side of it was originally with the permission of the owner of the property abutting the other side, who owned the fee to the center, and such possession was under no adverse claim of right until shortly before the commencement of suit to compel the removal of a building constructed thereon, and to enjoin the threatened construction of another, there was no claim of right sufficient to support a title by limitations. [Ed. Note. For other cases, see Easements, Cent. Dig. 88 25, 27-33; Dec. Dig. § 9.*] Appeal from St. Louis Circuit Court, Moses N. Sale, Judge. Injunction by the Dulce Realty Company against the Staed Realty Company. From a decree for plaintiff, defendant appeals. Affirmed. This is a proceeding in the circuit court of the city of St. Louis to enjoin the construction of a building on an alleged private alley, and to compel the removal of one already constructed. Pending the suit and before the trial, the building in contemplation by the defendant at the beginning of the suit was constructed. There was a decree for plaintiff requiring the demolition of both structures, and restraining any future obstructions to the alley. Defendant has appealed. The land in controversy is located in city block 190, bounded north by Chestnut street between Eighth and Ninth streets. In 1854 the Lucas heirs were the owners of all the property abutting on the alleged alley.' In that year they made partition by deeds to each one of them for separate parcels of the land. In all those deeds the land included in the alleged alley in controversy was described as "a space supposed to be five feet wide left by all concerned for an alley." The plaintiff now owns 40 feet fronting on Chestnut street and running south 80 feet 6 inches to a private alley 10 feet wide which runs east to Eighth street. The defendant owns two tracts. One tract was acquired in 1891, and is 84 feet fronting on Chestnut street running south 31 feet; the street, and runs east 125 feet to the alley, the east end of it being south of and adjacent to the other tract of defendant. The relative positions of those tracts with reference to the alley are shown on the following plat: wall on the east side of the alley was without openings, and extended further south than that on the west side. On both sides of the alley fences ran south from the corners of those buildings to the 10-foot alley. Those fences remained there until shortly before this suit began. The alley was open in 1891 from Chestnut street to the 10-foot alley. There was no opening or gate in the fence on the east side of the alley. describing it as bounded "west by an alley five feet wide." On April 6, 1872, James H. Lucas conveyed it to Robert J. Lucas as trustee for Joseph D. Lucas, describing it as bounded "south by alley and west by Gardiner and others." On November 16, 1875, Robert J. Lucas, as trustee, conveyed it to Joseph D. Lucas by the same description as in the last deed. There is no explanation in the evidence as to why those two deeds described the land as bounded "west by In 1892, the north end of the alley for a Gardiner and others." In 1903 Joseph D. distance of about 21 feet was inclosed by Lucas died, devising all his property to his wooden framework and doors on the north wife, who, on November 29, 1904, conveyed and south and with a roof and floor, and the it to Wm. Bunning, and by a quitclaim deed room thus formed, hereinafter called the of the same date she conveyed a strip five "cigar store," was occupied most of the feet wide corresponding to the 5-foot al- time by cigar men, and a part of the time ley to said Bunning, describing it by metes by a bootblack and by a brick man. It and bounds, but not stating that it was an rented at $10 a month up to the time of the alley, and also a strip corresponding to the trial. On April 18, 1894, the Staeds con10-foot alley, but not describing it as an al- veyed to the Staed Realty Company land ley. On November 29, 1904, Bunning con- described as follows: "A lot of ground in veyed the property east of the alley to Han- city block 190 of said city of St. Louis, benah R. Daugherty, and also by a quitclaim ginning at a point in the south line of Chestdeed conveyed the 5-foot and 10-foot strips nut street 41 feet east of Ninth street; thence to Daugherty, not calling them alleys. On east along south line of Chestnut street May 16, 1907, Daugherty conveyed the prop- 84 feet to west line of private alley; thence erty east of the alley to the plaintiff, and south along west line of private alley paralso conveyed with it the two strips by quit- allel to Ninth street 31 feet to the northeast claim deed, as it was described in the deed corner of property now or formerly of Wolff to him. All the deeds in the plaintiff's et al.; thence west parallel to Chestnut chain of title to the land east of the alley street 84 feet to the southeast corner of conveyed the land with its appurtenances. property of Robert S. McDonald; thence The chain of title from the Lucas heirs to north parallel to Ninth street 31 feet to the the land west of the alley was not put in point of beginning." No deed to the deevidence. On January 30, 1885, Robert S. fendant was in evidence for the 26 feet 2 McDonald conveyed the land fronting 84 inches fronting on Ninth street; but on Octofeet on Chestnut street immediately west of ber 24, 1894, the defendant executed a deed the alley, running south 31 feet, describing of trust describing it as follows: "A lot it as bounded east by a private alley, to of ground in said city block 190 containing a Robert N. Noonan, trustee for Josephine front of 26 feet 4 inches, more or less, on Noonan. On January 3, 1889, the Noonans the east line of Ninth street, by a depth conveyed it to Alfred D. Ryan, trustee for eastwardly of 125 feet, more or less, to a his wife, describing it as bounded east by private alley five feet wide. Bounded on the a private alley, and on February 11, 1891, west by Ninth street, east by a private alley, the Ryans conveyed it by the same descrip- south by a lot now or formerly of S. J. Fisher et al., and north by a line 31 feet south of the south line of Chestnut street." tion to John Staed, Patrick M. Staed, and Patrick J. Staed, and on the same day the Ryans conveyed to the Staeds by quitclaim On April 8, 1901, the defendant executed deed for the expressed consideration of $5 “a parcel of land in block 190 of said city lows: "A lot of ground in block 190 of said a deed of trust on property described as folof St. Louis, being known as a private alley and fronting on the south line of Chestnut city of St. Louis, fronting 26 feet and 2 street about 5 feet more or less, by a depth inches on the east line of Ninth street, by southwardly of about 31 feet, the west line a depth eastwardly of 125 feet, more or thereof being 125 feet east of the east line less, to the west line of a private alley 5 of Ninth street, and bounded on the north feet wide, and bounded on the north in part by Chestnut street, west by property convey- by property also conveyed in said deed, and ed to Staed et al., by deed dated February in part by property formerly of R. S. Mc11, 1891, and east by Lucas." At the time Danold, and on the east by a private alley, of the conveyance to the Staeds, there were and on the south by property formerly of two-story brick buildings fronting on Chest- Minnie L. Siegrist, and on the west by Ninth nut street on both sides of the alley, the street; and also a lot of ground in said walls being five feet, three and a fourth block having a front of 84 feet on the south inches apart. The west building extended line of Chestnut street, by a depth southsouth 31 feet, and the wall next to the al- wardly of 31 feet, more or less, to the northley was without openings, except a window ern line of property first described in said near the south end in the second story. The|deed. Bounded on the north by Chestnut |